blackprof.com: Judge Damon J. Keith: No Warrantless Wiretaps of Citizens

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After law school I had the good fortune to clerk for U.S. Court of Appeals Judge Damon J. Keith. Twenty-two years earlier, when Judge Keith sat on the federal district court, he presided over U.S. v. Sinclair, 321 F. Supp. 1074. The matter was a criminal trial for members of the White Panther Party who were charged with bombing the CIA offices in Ann Arbor, Michigan. The federal government tapped the phone lines of at least one defendant without obtaining a warrant. Judge Keith decided that President Richard Nixon and Attorney General John Mitchell could not engage in warrantless wiretap surveillance.

Judge Keith wrote:

In the instant case the Government apparently ignores the overwhelming precedent . . . and argues that the President, acting through the Attorney General, has the inherent Constitutional power: (1) to authorize without judicial warrant electronic surveillance in "national security" cases; and (2) to determine unilaterally whether a given situation is a matter within the scope of national security. The Court is unable to accept this proposition. We are a country of laws and not of men.
. . .

The contention by the Government that in cases [**9] involving "national security" a warrantless search is not an illegal one, must be cautiously approached and analyzed. We are, after all, dealing not with the rights of one individual defendant, but, rather, we are here concerned with the possible infringement of a fundamental freedom guaranteed to all American citizens. In the first Supreme Court case involving wiretapping, Justice Brandeis, in his dissenting opinion, concisely stated the issue at stake in a case of this nature:

"The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, [**10] must be deemed a violation of the Fourth Amendment." Olmstead v. United States, 277 U.S. 438, 478, 48 S. Ct. 564, 572, 72 L. Ed. 944 (1928).
. . . .
Generally, in order to search a citizen's premises, law enforcement agents must appear before the Court or Magistrate and request a warrant. The request must describe the place to be searched, matter to be seized, and, most importantly, there must be a statement made under oath that the Government has probable cause to believe that criminal activity exists. Through this procedure (the maintenance of a system of checks and balances between the arms of Government), we as citizens are assured the protection of our constitutional [**11] right to be free from unreasonable searches and seizures. Prior to the issuance of any search warrant the Court must independently review the request to search and make an objective determination whether or not probable cause of some criminal activity exists, which activity would make the search reasonable and not in violation of Fourth Amendment rights. Absent such a requirement of an objective determination by a magistrate, law enforcement officials would be [*1079] permitted to make their own evaluation as to the reasonableness, the scope and the evidence of probable cause for a search. This Court is loath to tolerate the existence of such a condition.

. . . if the President is given power to delegate who shall conduct wiretaps, the question arises whether there is any limit on this power. . . . .

Judge Keith’s decision was affirmed by the U.S. Court of Appeals, and upheld unanimously by the U.S. Supreme Court.

In 2002 Judge Keith heard another matter in which the government attempted to invoke a rule that would close all 9/11-related deportation matters. Judge Keith disagreed, explaining that "Democracies die behind closed doors."

I've always admired Judge Keith. In addition to being a great mentor, he is always amazing--in his activities today as well as his activities decades ago.

Comments

The government is lawyers. How many times is a warrant request for wiretapping turned down by a judge? If the answer is less than 30% of the time, the lawyer on the bench is mere rubber stamp for the lawyer in the executive, and only rent seeking make work is furthered by these rules.

If the answer is over 30%, one will be able to feel the difference and the protection of liberty.

Numbers, not rhetoric.

So you do not have to strain:

http://www.cato.org/dailys/10-02-96.html

Posted by: Supremacy Claus | December 18, 2005 05:33 PM

Also troubling about President Bush's secret order authorizing the NSA to conduct warrantless domestic eavesdropping is that the NY Times delayed reporting it for a year at the White House's request. At least let us know when our civil liberties are being violated!

Posted by: Dorothy Roberts | December 18, 2005 06:37 PM

Supremacy Clause asked:

"How many times is a warrant request for wiretapping turned down by a judge? If the answer is less than 30% of the time, the lawyer on the bench is mere rubber stamp for the lawyer in the executive, and only rent seeking make work is furthered by these rules."

You are mistaken law enforcement, i.e., the police are responsible for the conduct of investigations, not attorneys. Attorneys review the process to ensure that 4th Amendment rights have not been violated if facts suggest that 4th Amendment issues are relevant.

Posted by: Ricardo | December 18, 2005 09:35 PM

Mr. Ricardo, Sir: If you read the facts above, the AG is the defendant. Let's accept your version, the police is investigating.

In what fraction of cases has a request for a wiretap by a govt atty or police offiver been denied?

If the fraction is low, then this is just lawyer make work.

This inspires another point. His Honor used the tool of the exclusionary rule.

By mere legislation, the Congress could apply Exclusionary Rule II. If a Justice refuses to recuse himself when a conflict of interest arises, the entire decision should be "excluded." That would allow the Appeals Court decision to stand. Because the latter is likely to reflect prior SC decisions, and would make the court more conservative in the sense of maintaining the status quo.

The other simple path to greater conservatism (maintaining the status quo, not right wing politics) is to change the number of justices to an even number. The dumbass 5-4 decisions would be eliminated. Pick, 8, 10 or 100. It does not matter.

Posted by: Supremacy Claus | December 18, 2005 10:04 PM

I appreciate the legal (and political) jousting over this issue. But when I consider how much corporations spy on us for purely commercial reasons, I find it hard to sustain moral indignation against the government's spying for national security reasons.

A little perspective...please!

Posted by: anthony | December 19, 2005 07:51 AM

Anthony:

My understanding is that much of the U.S. Constitution (including the 4th Amendment) applies to state action rather than private action. Perhaps the founders believed that tyranny by the state posed unique threats to liberty and democracy, and that politicians might try to appeal to popular fears to obtain more power.

Posted by: S | December 19, 2005 08:27 AM

S: The 4th Amendment was in response to British soldiers entering private homes, eating all the food, seeking dates with all the womens.

It was never designed as a lawyer full employment act. It was not designed to allow abortions of millions of viable babies in the third trimester. It was not designed to set the murderers free on technicalities and lawyer gotchas that throw the truth from the court window.

The information corporations have is voluntarily offered. They just put it together and share it. Sue them if you don't like that, and can show damage.

We need a database of lawyers. Product and service providers could find out if a client is a lawyer. They could then refuse them any service, shun them, and let them fix their own heaters and do their own appendectomies until the lawyer stops seeking to destroy our besieged nation.

I feel sorry for the innocent members of their families. But then lawyers only care about the Gulfstream fleet and don't give any consideration to the families of the people whose lives they destroy. Minorities suffer the most from lawyer rapaciousness.

Posted by: Supremacy Claus | December 19, 2005 09:48 AM

Supremacy Claus:

I don't know where your 30% number comes from, but your logic is faulty, and appears to assume that lawyers present bad warrants and then it's up to judges to refuse to sign them. When I was a prosecutor, I was frequently presented with search warrants by police officers. If the warrant did not contain probable cause, *I* would refuse to present it to a judge for a signature. Consequently, of the warrants I presented, the vast majority were granted, because they actually contained probable cause to begin with. *I*, the attorney, saw to it to prevent wasting the judge's time and appearing to encourage a miscarriage of justice.

Additionally, I would like you to know that there ARE databases of lawyers maintained by most states, especially those with mandatory bar membership. Feel free to avail yourself of such in order to convince service providers to avoid us; I suppose I should feel grateful that I can also cook and fix a toilet with you on the loose.

As a member of the bar who has worked hard to uphold the law while preserving the civil rights of individuals in every position I have held, I take umbrage at your suggestion that I am somehow responsible for the destruction of the nation. But I cannot and will not interfere with your right as an American to be as ignorant as you want to be.

Posted by: Lawyer K | December 19, 2005 04:29 PM

K: You are arguing, you had a duty to present proper warrant applications, and nearly always did. So the hearing was to increase your hours, and to give a judge something to do, rubber stamp the overwhelming fraction of proper warrant applications? Since you are so competent, why not batch reviews by a clerk every few weeks?

Why not? Because this is lawyer rent seeking make work. That aim also predicts most appellate decisions. A statistic was tossed out today about the wiretap controversy. Of 10,000 applications, none were denied by any judge.

Sticking to criminal law. Your ilk permits 23 million FBI Index Felonies a year, 5 million being violent. How many result in meaningful punishment? Educate me, as an ignorant member of the public.

From the obverse of the coin, you generate $1 mil in fees per death penalty case. It turns out, up to 20% of the condemned are innocent, after a scientific, validating technology.

This is not sarcastic question. I really want your honest opinion. Is lawyer performance in your specialty adequate?

Posted by: Supremacy Claus | December 19, 2005 05:11 PM

As to paragraph 1, prosecutors don't bill hourly. They are paid a salary and aren't therefore eligible for overtime. Consequently they make the same money whether they put in an eight-hour day or a twelve-hour day (which many do). The same usually goes for any government attorney, and warrants are presented for law enforcement by government attorneys. They are not, therefore, increasing their hours or their pay when they increase their workload. While I am an extremely competent attorney, I believe in the advocacy system, in which a fact-finder makes the ultimate determinations. To ask why I don't think I should have the final say on warrants is like asking why I don't think I should have the final say on verdicts. The opportunity for corrupt choices by the bad is lessened, while the chance for justice by the good is not negatively impacted.

Paragraph 2: Again, government lawyers (and judges), unlike private attorneys, are not generally paid on an hourly basis. They don't benefit by increasing their workloads.

Paragraph 3: My ilk don't make the choice for an individual whether or not to commit a crime. We punish the individuals who choose incorrectly. But we don't make criminals. For that, you'll need to heap blame on parents, educators, television, crack, gangs, the President, and poor nutrition. If I remember correctly, the percentage of crimes that result in punishment is astoundingly low. Not for lack of trying, I'd say. But for lack of sufficient personnel (both in law enforcement and the courthouse) and lack of proper economic incentive (which is NOT the same as financial incentive) in our society not to commit crime. For some people, it is economically sound policy to jack a car rather than buy one.

Paragraph 4: I have no idea where your number on the death penalty comes from, and I wouldn't flaunt it if I were you, especially with many states refusing altogether to provide the DNA testing that might demonstrate innocence -- it would only make them more relectant. But again, whatever fees are generated in death penalty cases would be generated for the few defense attorneys representing a condemned man who are being paid by the hour. Remember, many of those attorneys are federal or state public defenders (also salaried) or pro bono, working for the cause alone.

Paragraph 5: This is not a sarcastic answer. I believe the number of adequately performing lawyers, in my specialty or any other, roughly parallels the number of adequately performing people in any profession. Teachers take the hit when we are looking at low-performing kids, but there are a lot of good teachers still slogging away against the odds in those classrooms. Cops take the hit when someone gets beaten on video tape, but plenty of cops have never taken a swing at anyone, and have talked crackheads into rehab and abusive spouses into counseling. Doctors take the hit when they bail on their oath in the face of high malpractice insurance, but many doctors struggle to pay it and go right back into the operating room. Lawyers take the hit because of outrageous jury verdicts, but the truth is, we aren't the ones sitting on the jury panels handing out the money. We are, however, the messengers and the easiest targets (juries being made up of those who point the finger at lawyers), but many of us go right back out there to make sure an accused gets an adequate defense, a battered doesn't return home to an abusive parent, or a drunk driver gets talked into AA this time. As an attorney who has taken extra time to make the damn-near-impossible happen to improve lives, I will continue to do this despite your low opinion of me and my profession. And just like what you owe to the average decent teacher, the average decent cop, and the average decent doctor, you will probably never know it.

Posted by: Lawyer K | December 19, 2005 06:04 PM

Costs:

http://www.deathpenaltyinfo.org/article.php?did=108&scid=7

Estimate of "mistakes":

http://www.stats.org/record.jsp?type=oped&ID=47

Would enjoy discussing the high US crime rate sometime. The lawyer is, as you argue, one factor and not the entire explanation.However, the lawyer runs the show, cannot do so without accountability.

One problem is the antiquity of criminal law to Medieval or Late Medieval period. Different social contest and motivations than today. Nothing works from that era. If I built oxcarts exact replicas today, I could not be using material nor methods from 1300 AD. I would be sued for the failure of the cart.

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